The tribal communities are not above the State law. But for all practical purposes they are governed by complex regimes customary law, administered by community dispute institution. Each tribal group has its own type of legal system. While some tribes have ad hoc or temporary dispute institutions, others have permanent institutions.
The Apa Tanis tribes have a permanent council which comprise representatives of each clan of the village. There is a clear distinction between ‘public’ and ‘private’ wrongs in Apa Tanis jurisprudence. Theft is considered to be a wrong against society necessiating public trial and punishment, whereas for private disputes self-help is permitted. Village Councils will activate themselves only on such occasions where private disputes develop a tendency to affect public peace.
Among Gonds, social control is exercised through village level panchas (a group of five men), drawn mainly from the influential and important circles of the village. There are three forms of excommunication (a type of punishment for offences). The first one is most severe and imposed on those who have lost their normal ritual status by such a polluting act as the sharing of a meal or having sexual intercourse with a non-Gond of a low status. The second degree of excommunication is a form of outcasting; and the third amounts merely to exclusion from worship at ancestral shrines. A Gond refusing to comply with the decisions of the
panchas is “no longer a Gond”.
Among the Nagas, there are two types of Naga villages- democratic and chiefly. In both villages, authorities exist to exert control and impose sanctions. In democratic villages, councils comprising elected heads of families settle disputes. Usually, fines are imposed for breaches of customary law, although banishment is also awarded as a punishment (for example, in cases of repeated thefts). In chiefly villages, there is a bias towards the strong clans, as they may obtain outcomes they prefer against the relatively weak clans.
Among the Santhals of Bihar, the headman performs following functions; (i) protection of collective rights, (ii) protection of individual right, (iii) ensuring performance of collective duties, and, (iv) containing deviance and ensuring commitment to santhal culture.
It is not that the non-State legal system of the tribals is free from the influence of State legal system. The prevention of the practice of head- hunting among Nagas, and the actual disuse of this sanction, is a direct consequence of the imposition of State law as an initiator of change in the indigenous law. However, the State legal system has a negative face for most tribals perhaps not because of the problem of differing culture modes but due to the manifest corruption and cruelty of its non-tribal agents – the police, prosecutors and in some cases even the courts.
The impact of the Constitutional provisions for the Scheduled Tribes over the internal political and judicial processes of the tribal system remains to be examined. There is a greater need for a sustained systematic examination of the relation between people’s law and State law, and underlying value and ideology considerations.